Bristol v. County of Carroll.

• Decision Date: 18 May 1880
• Parties: PELEG BRISTOL et al.v.COUNTY OF CARROLL.
• Court: Illinois Supreme Court

95 Ill. 84

1880 WL 10010 (Ill.)

PELEG BRISTOL et al.

v.COUNTY OF CARROLL.

Supreme Court of Illinois.

Filed at Ottawa May 18, 1880.

APPEAL from the Circuit Court of Stephenson county; the Hon. JOHN V. EUSTACE, Judge, presiding.

Messrs. J. & J. W. McCOY, for the appellants:

In ejectment, the plaintiff must recover on the strength of his own title, and not on the weakness of the defendant's. Marshall v. Baker, 35 Ill. 106; Hague v. Porter, 45 Id. 318. The plaintiff has not shown that the land in question is swamp or overflowed land.

No title was ever in the United States or the county of Carroll to the land in question, it being in the bottom of a meandered lake, and no survey that could be made would interfere with the title of the defendants as riparian owners.

The maps, plats and field notes of the government survey become a part of the evidence of title to enable the grantee to identify his boundary and lands. The grant is to be taken most strongly against the grantor. Where the government has not reserved any right or interest that might pass by the grant, the grant will be construed most favorably to the grantee. Middleton v. Pritchard et al. 3 Scam. 510.

Meander lines are not boundary lines, and are only made for the purpose of defining the sinuosities of the bank of the stream, as a means of ascertaining the quantity of the land in the fraction subject to sale. In preparing the official plat from the field notes, the meander line is represented as the border line of the stream, and shows to a demonstration that the water course, and not the meander line as actually run on the land, is the boundary. Railroad Co. v. Schurmier, 7 Wall. 272; Middleton v. Pritchard et al. 3 Scam. 510, 522.

Riparian owners of land bounded by a stream not navigable in the technical sense of the term, hold the land to the center thread of the stream, and the water and soil under it are exclusively that of the riparian owner to that point. Middleton v. Pritchard, 3 Scam. 510; Canal Trustees v. Havens, 11 Ill. 554; City of Chicago v. Laflin et al. 49 Id. 172; Braxon et al. v. Bressler, 64 Id. 488.

The right to alluvial formations is a right inherent in the property--an essential attribute of it--the result of natural law in consequence of the local situation of the land. Municipality No. 2 v. Orleans Cotton Press, 18 La. 122; The King v. Lord Yarborough, 3 Barn. and Cress. 91; Banks v. Ogden, 2 Wall. 57; Warren v. Chambers, 25 Ark. 122; County of St. Clair v. Livingston, 23 Wall. 46. Messrs. NEFF & STEARNS, for the appellee:

It was not incumbent on the appellee to prove that this land was swamp land. The grant to the State is conclusive. Johnson v. Towsley, 13 Wall. 72; French v. Fryan, 3 Otto, 169; Keller v. Brickley, 78 Ill. 133.

No public rights are affected by the decision of this suit. The right of the public to an easement in the land is not involved, nor will the decision of this suit determine the rights of either party as against the public.

This court has often held that by the mere act of conveying land bounded by a stream or water course, without expressing any intent to the contrary, the government of the United States not only may, but as a matter of fact does, convey to its grantee the soil under such stream or water course to the middle thereof, subject to the easement of a right of passage in the public. Middleton v. Pritchard, 3 Scam. 510; Canal Trustees v. Havens, 11 Ill. 554; Chicago v. Laflin, 49 Id. 172; Livingston v. St. Clair County, 64 Id. 56; C. and P. R. R. Co. v. Stein, 75 Id. 41.

It was not necessary for the appellee to prove the regularity and correctness of the acts of executive officers of the government.

The legislature of this State has made a list of swamp lands certified by the county clerk sufficient evidence of title. Laws 1854, (2d sess.) p. 21, sec. 8.

Appellants have shown no claim adverse to the title of appellee. Mere acts of possession, unaccompanied by a claim of ownership hostile to the title of the legal owner, do not constitute adverse possession. Jackson v. Berner, 48 Ill. 203.

The possession of land under a deed for more than twenty years will not give title to such portion of the land possessed as lies beyond the lines therein described, if this was occupied by mistake, supposing it to be covered by the deed. Dow v. McKenney, 64 Me. 138; Worcester v. Lord, 56 Id. 265.

There is no proof that the possession of appellants had continued for twenty years before this suit was brought. Adverse possession does not run against the appellee. Appellee is a county--a branch of the government--a quasi corporation, existing not for its own benefit, but for the benefit of the public. The weight of authority seems to be, that laches can not be imputed to such a body, and against it the Statute of Limitations does not run. Angell on Lim. secs. 36, 37; Moreland & Willes v. State Bank, Bre. 263; County of Madison v. Bartlett, 1 Scam. 67; Galbraith v. Littiech, 73 Ill. 209; Symonds v. Clay County, 71 Id. 355.

Riparian rights depend upon the terms of the proprietor's title in relation to the boundary of his estate. 3 Kent's Com. 434; Canal Trustees v. Havens, 11 Ill. 554; City of Chicago v. Laflin, 49 Id. 172; C. and P. R. R. Co. v. Stein, 75 Id. 41; Livingston v. St. Clair County, 64 Id. 56.

Where the boundaries in a deed neither expressly nor by implication call for a natural monument, the calls for courses and distances must govern. Spruill v. Davenport, Busbee L. 134; Riley v. Griffin, 16 Ga. 141; McIver's Lessee v. Walker, 9 Cranch, 173; Yoder v. Swope, 3 Bibb, 204; Sawyer v. Cox, 63 Ill. 130.

Mr. JUSTICE SHELDON delivered the opinion of the Court:

This was an action of ejectment, brought by the county of Carroll against Peleg and Henchcliff Bristol, to recover the possession of the west half of lots 1 and 2 of the north-west quarter of section 5, in township 23, north of the base line in range 4 east of the fourth principal meridian, in Carroll county, Illinois. The plaintiff recovered, and the defendants appealed.

The plaintiff's claim of title is under the act of Congress of September 28, 1850, entitled “An act to enable the State of Arkansas and other States to reclaim the swamp lands within their limits,” whereby were granted all the swamp and overflowed lands then belonging to the United States lying within the limits of the State of Illinois, to said State, (9 U. S. Stat. at Large, p. 519); and an act of the General Assembly of this State, approved June 2, 1852, granting all such swamp and overflowed lands, granted to the State by said act of Congress, to the counties respectively in which the same might lie or be situated. Laws 1852, p. 178.

The act of Congress made it the duty of the Secretary of the Interior to make out an accurate list and plats of such swamp and overflowed lands in the State, and transmit the same to the Governor of the State. Such list was accordingly made out and transmitted to the Governor, and filed in the office of the Auditor of Public Accounts on January 30, 1855, in which list are embraced the lands in controversy. A list of the swamp and overflowed lands lying in the county of Carroll, in this State, certified to by the Auditor of the State, was filed in the office of the clerk of the county court of Carroll county, in which list appear the lands in controversy.

In 1854 the above act of the General Assembly of June 2, 1852, was amended by providing, among other things, that such lists should be sufficient evidence of the title to the lands therein described, and should have the same force and effect as patents issued for school lands, and that duly certified copies of such lists should be received in all courts, and have the same force and effect as the original lists. Laws 1854, p. 19, § 8. A duly certified copy of such list made by the county clerk of Carroll county was exhibited in evidence, showing therein the lands described in the declaration.

These documents, with the above named acts of Congress and of the General Assembly, showed the title to the lands in controversy to be in the county of Carroll.

It was not necessary, as suggested by appellants, to show that the lands were in fact swamp and overflowed lands. It was enough that they were found included in the list of swamp and overflowed lands which the Commissioner of the General Land Office transmitted to the Governor as such. The act of Congress conferred upon the Secretary of the Interior the power of determining what lands were of the description granted by that act, and the decision of his office on that subject is controlling. French v. Fryan, 93 U. S. 169.

November 1, 1855, a patent was issued by the United States to Daniel St. Ores, conveying the east half of lots 1 and 2 of the north-west quarter of section 5, in township 23 north of the base line of range 4 east of the fourth principal meridian, in Carroll county, Illinois, under which patent the defendants derive title.

The plaintiff, then, has title to the west half, and the defendants to the east half of lots 1 and 2 of the north-west quarter of section 5.

In 1834 this township 23 was surveyed by Charles R. Bennett. He meandered the edge of a swamp or lake situate on the west side of section 5 and the east side of section 6, the centre of which he indicated upon his plat as an “impassable lake.”

The work of Bennett appears to have been rejected, so far as respected the northern quarters of the northern tier of sections in said township. In July, 1850, and January, 1851, William Pollock, under contract with the United States, completed the survey of township 23, and his work appears to have been approved by the land department at Washington. The season being uncommonly dry he seems to have recognized neither swamp nor impassable lake in the part of the township he surveyed, but ran his lines through to their meeting points. The line run by him, between sections 5 and 6, was very nearly in the centre of the...